State ex rel. McLean v. Buchanan, 53 N.C. 444, 8 Jones 444 (1862)

June 1862 · Supreme Court of North Carolina · Deitch, for the defendants

53 N.C. 444, 8 Jones 444

State on relation of JOHN McLEAN v. WILLIAM BUCHANAN et al.

JPhe ceremony of acknowledgement in open court, and registration, are not essential to the validity of a sheriff’s bond.

Where a debtor lived in one county, and had places of business in two other counties adjoining, and it appeared that a sheriff who acted as a collecting officer, went three times during three months to such residence, at the end of which time the debtor became insolvent, although it appeared that the debtor was most usually absent from home during this time, it was held that the officer was guilty of such laches as to render him and his sureties liable on his official bond.

Action of debt, on official bond of a sheriff, tried before Saunders, J., at the Spring Term, 1861, of Richmond Superior Court.

The breaches assigned, were for failing to collect, and for -collecting and failing to pay over the money on a noté put into his hands on one David A. Boyd, for collection.

The plaintiff introduced a paper-writing which was on file in the office of the County Court of Eichmond county, as the official bond of the sheriff for 1856, to which D. 8. McDonald is a subscribing witness. He testified that in his office, outside of the court room, on the day on which the bond purports to have been executed, all the defendants either signed the bond or acknowledged their signatures in his presence, and he signed it as a witness, but they did not acknowledge it in open Court, and further, that he was not clerk of the County Court at that time.

Louis II. Webb was then introduced, who testified that at October term, 1856, he was clerk of the County Court of Eichmond county, and that during that term, the bond in question was offered by "William Buchanan as his official bond as sheriff, and accepted by the Court, but that no one of the sureties therein named, either signed the bond or acknowledged it in open Court. His Honor.decided that this proof established the paper in question to be the official bond of the defendant as sheriff of Eichmond, and allowed the same to be read ; for which ruling, the defendant’s counsel excepted.

The claim above described, was put into the hands of - an acting deputy of the defendant, Buchanan, on the 4th of December, 1856, and it was proved that Boyd, the debtor, was in possession of sufficient property to satisfy it; that the said deputy, on or about the 15th of December, in that year, went to the usual place of Boyd’s residence to'serve a warrant on him, but could not find him; also, that he went to the same place two other times bétween that time and the 27th of February, 1857, on neither of which occasions could he find him.

W. M. Dost testified that he was an officer, and lived within two miles of Boyd; that he had claims in his hands against him for collection between the 4th of December 1856 and 27th of February, 1857, and that he went to his usual place of residence several times without finding him; that during that 'time Boyd had places of business in the counties of Montgomery, Cumberland and Anson; that his residence was ir. Eichmond county, near the line between that county and Montgomery, and that he was, during that time, most frequently absent from home.

it was also proved, that on.the 27th February, 1857, Boyd conveyed all his property by a deed of trust to satisfy othe.r claims.

His Honor charged the jury that if they believed this testimony, it established such laches in the deputy as rendered the sheriff and his sureties liable on the bond in question.

Defendants’ counsel again excepted.

Yerdict for the plaintiff. Judgment and'appeal by the defendants.

McDonald and Shepherd for the plaintiff.

Deitch, for the defendants.

Manky, J.

Two exceptions were taken on the trial below to the rulings of the Court, neither, of which can avail the appellant.

No particular formalities are prescribed by law for the.execution of the sheriff’s bond. If a bond, executed according to the requirements of the common law, be accepted by the court, and the sheriff thereupon inducted into or continued in office, the bond is obligatory on the parties, although the dntjr of tire court to have it acknowledged and recorded, be omitted. The ceremony of acknowledgement, in open court, and the recording of the bond, are important provisions of law for authenticating the execution of the instrument, and preserving evidence of its existence and contents, but-are not essential to its validity as an office bond. See Eevised Code, ch. 105, sec. 13, and ch. 44, sec 8. The signing, sealing and delivering of the bond, according to the requirements of the common law, were proved upon the trial. It is nowhere provided that registration is necessary to make it admissible in evidence, and whether, therefore, it was a bond taken if conformity with the statute, seems not to have been material. It was admissible and obligatory between the parties as a common law bond, and no rule of law appertaining to an action' upon it, as such, has been violated. So, in whatsoever character it be regarded, no error has been committed to the prejudice of the defendant. :

We fully concur with his Honor below in the view he took of the question of laches. It seems, from the statement of the case, that the debtor, Boyd, had sufficient means to satisfy the demand, down to the time of making a general assignment ; viz. on the 27th of February, 1857; the claim was put into the hands of the defendant’s deputy on the 4th of December, 1856. The deputy, with a view or executing process, on the debtor, visited his place of residence on the 15th of December, and on two other occasions, between that and the 27th of February, 1857, but failed to find him at home on any of the occasions. The debtor resided in Eichmond, but had three other places of business in adjoining counties, and spent the greater part of his time away from his place of residence. It does not appear that the officer made any effort to find the debtor, except the three visits stated, and no process was ever executed, nor other means used to collect the debt from the 4th of December to the 27th of February, a period of nearly three months. This was not ordinary care and diligence!*— For aught that appears, in the facts of the case, due care and watchfulness, would have secured a different result.

Per Curiam,

Judgment affirmed.